The decision by Ohio Gov. John Kasich on Friday to postpone all seven scheduled 2015 executions in the state is part of growing evidence suggesting that courts – and American society – are coming to a fresh showdown over the humanity of how states administer the ultimate sanction.
Governor Kasich’s decision comes as Ohio and other death penalty states struggle to finesse a lethal drug cocktail that would consistently end an inmate’s life humanely. The postponement was announced three weeks after the state said it would no longer use a controversial drug, midazolam, which was employed in a series of executions that went awry last year.
What’s more, the decision to delay comes one week after the US Supreme Court agreed to weigh whether a lethal injection cocktail using midazolam violates the Eighth Amendment’s prohibition on cruel and unusual punishment. And it comes almost exactly a year after Ohio executed Dennis McGuire, who appeared to struggle during a 26-minute execution that was expected to take no more than 10 minutes.
Similar problems with executions in other states – including the April execution of Oklahoma’s Clayton Lockett, who regained consciousness during the procedure and appeared to writhe in pain before expiring after 43 minutes – have played a role in raising concerns. So have high-profile exonerations, including a record six death row inmates around the country who had their sentences reversed last year.
The dynamics changed further last Friday, when the US Supreme Court agreed to again take up the issue at the behest of three Oklahoma death row inmates, who claim the drug cocktail now being used in the state isn’t powerful enough to induce deep sleep, making the process, in their opinion, inhumane. The court will hear the case in April and likely issue a ruling by June.
The US high court "may focus just on what Oklahoma is doing, but it will set a standard for every state,” Richard Dieter, executive director of the Death Penalty Information Center, told The Washington Post last week. “It's going to put a stamp on what's allowable and what's not."
The US Supreme Court found in 2008 that using a toxic mix of powerful barbiturates to induce death in state executions was problematic yet constitutionally humane. But the protocols have changed so much that the court decided to weigh in again on the issue.
The decision will come at a time when society's support for the ultimate sanction appears to be ebbing. A majority of Americans still support the death penalty overall, but support has slipped from 78 percent in 1993 to 55 percent in 2014, according to the Pew Research Center. That level of support has remained unchanged the past five years, and does not seem to have been affected by a series of botched executions last year.
US juries, even in death penalty states like Texas, continue to condemn fewer and fewer people to death, according to a Dec. 19 Bureau of Justice Statistics report. The study found that 2013 marked the 13th straight year with a decrease in the US death row population. Sixty percent of the nation's death row inmates are housed in five states: California, Florida, Texas, Pennsylvania, and Alabama. Today, fewer than 3,000 people sit on death row in the US.
While experts say death penalty exonerations have raised the biggest questions for the US public, the lethal injection issue has caused the most legal and bureaucratic issues for states.
States no longer have access to their preferred drugs because a European drug maker has refused to sell the product if it’s to be used to induce death. That has left death penalty states scrambling for alternatives.
The delay in Ohio, which is designed to give the state more time to find a supply of new drugs and prepare a new protocol for executions, means that the state will go at least two years without an execution.